The Senate has backed the reduction in the general PBS co-payment but an amendment to the enabling legislation effectively requires the government to produce an outcome on the Opiate Dependence Treatment Program by the middle of next year.
The Senate endorsed the enabling legislation to reduce the co-payment but backed an amendment proposed by independent Senator David Pocock that will require the government to lodge legislative instruments for all Section 100 special arrangements.
The amendment means the health minister must lodge a legislative instrument for any 'special arrangement' for medicines listed on the PBS under Section 100 of the National Health Act 1953 by July next year.
A listing on the PBS under Section 100 enables certain special arrangements to reflect what can be complex distribution and administration requirements, such as the delivery of cancer medicines in a public or private health setting.
There are 15 Section 100 special arrangements with 14 implemented through a lodged legislative instrument.
The only one missing a legislative instrument is the special arrangement for the Opiate Dependence Treatment Program (ODTP).
The lack of any legislative instrument clearly means the ODTP is not lawfully enforced under the requirements of The Legislation Act 2003.
The failure to properly enforce the arrangement has been consistently raised through Senate committees with one advising former health minister Greg Hunt that it almost certainly contravenes the requirements of The Legislation Act 2003.
Senator Pocock's amendment will prevent any further attempt by officials to hide behind the outdated wording of Section 100.
The ODTP reimburses medicines for the treatment of opiate dependence but removes basic protections including capped co-payments. The arrangement denies remuneration for pharmacies and exposes patients to unregulated private dispensing fees that undermine access to PBS-listed medicines.
The Federal Court has found that opiate dependence is a disability, meaning the current special arrangement for the ODTP breaches Australia's anti-discrimination laws.
This is probably why no legislative instrument exists and why amending the co-payment reduction Bill compels a proper fix to this unfair, discriminatory and unlawful program.
